Fake It till You Make It: A Justification for Intellectual Property "Piracy"

Abstract

Economic development, especially in the Least Developed Countries (LDC), requires use of intellectual property without always compensating the rights holders in the most developed countries. Unconventionally, this Article uses neoclassical economics to provide a rational solution to access rights in the LDC while respecting the first principle of intellectual property right—utilitarianism. The price discrimination model provides a useful rubric to segregate developed country markets from developing country markets. Furthermore, it also provides a subtle test in the case of individual uses of intellectual property as to which should be tolerated in developing nations as uncompensated uses and which should be punished as piracy due to their subverting the economic incentive necessary to promote the creation of intellectual property in the more developed nations. This Article concludes that in the long run, tolerated uncompensated uses in nascent LDC markets are more efficient engines of economic development than direct foreign or sporadic technology transfer and therefore, are in the developed countries’ best interests to promote a stable global community through economic development in the LDC. * Professor, University of Toledo College of Law (lgibbon@utnet.utoledo.edu). The author would like to express his appreciation to faculty participants who commented on his paper at the 14th annual Intellectual Property Scholars Conference (Berkeley School of Law), Midwestern People of Color Legal Scholarship Conference (Indiana Tech Law School), and 2014 Intellectual Property Scholars Roundtable (Drake University Law School). He would also like to acknowledge Professor Daryl Lim’s extraordinary skills as a commentator. Finally, the author would like to acknowledge the encouragement of Gerardo Villagomez de Oliveira e Souza. As always, the many flaws in this Article are solely the responsibility of the author. 1. Close to Home, Fake It Till You Make It, PLYRICS (2012), http://www.plyrics.com/lyrics/ closetohome/fakeittilyoumakeit.html. 2. Least Developed Countries (LDCs), UNITED NATIONS CONFERENCE ON TRADE & DEV. (2013), http://unctad.org/en/Pages/ALDC/Least%20Developed%20Countries/LDCs.aspx (last visited Sept. 19, 2014) (defining LDCs as “a category of States that are deemed highly disadvantaged in their development process, for structural, historical and also geographical